Statutory Mandate Research Articles

Benefit-Cost Analysis in the States: Status, Impact, and Challenges

Although there is growing interest in applying benefit-cost analysis (BCA) to public policy questions, limited information is available on states’ use of this methodology. The nationwide assessment presented here begins to fill that void and finds that states and the District of Columbia are increasingly conducting BCAs and using the results to inform their policy choices. The numbers of reports released by the states and statutory mandates to conduct these studies increased substantially between 2008 and 2011. An analysis of the studies released by states shows that most lack some recommended technical features of rigorous BCA, but the reports are having a reported impact on state policy and budget decisions. Like other forms of policy research, BCA faces challenges including resource and data limitations, timing problems, and gaining policymaker buy-in for the approach and findings.

Law in Regression? Impacts of Quantitative Research on Law and Regulation

Quantitative research (QR) has undeniably improved the quality of law- and rulemaking, but it can also present risks for these activities. On the one hand, replacing anecdotal assertions regarding behavior or the effects of rules in an area to be regulated with objective, statistical evidence has advanced the quality of regulatory discourse. On the other hand, because the construction of such evidence often depends on bringing the complex realities of both human behavior and rules designed to govern it into simple, quantified variables, QR findings can at times camouflage complexity, masking real problems. Deceptively objective findings can in this way prevent the kind of deep, difficult granular investigation a problem needs.In this paper, I examine the methodology of QR, highlighting points where objectivity and verifiability can be threatened. I then discuss a number of case studies where common patterns emerge in the interaction between QR and policymaking. These include the displacement of qualitative problems with inaccurate quantification, the release of powerful, statistical or otherwise quantitative ‘sound bites’ that immediately move policy but are later found to be incorrect, deflating like a ‘bubble’, and the abdication of governance duties by regulators in favour of quantitative indicia like the performance benchmarks of an ‘efficient market’. These case studies reveal a particularly troubling tension between the strength of QR in reaching generalized findings and the uniquely context-specific nature and operation of most laws and regulations.I recommend a number of measures to improve the use of QR in policymaking, including increasing the transparency of data generation and analysis within the academic community, putting more emphasis on inter-disciplinary creation and validation of findings, using certain cautionary disclosure when making ‘public offerings’ of quantitative findings, and holding policymakers more strictly to their statutory mandates, even if not complementary with quantitative analysis.

From Policy Confusion to Doctrinal Clarity: Successor Liability from the Perspective of Big Data

Few corporate law doctrines have undergone more radical change but remain without clear restatement than successor liability. While other doctrines have received sustained empirical and theoretical attention, successor liability remains confused and understudied. This Article presents for the first time a large-scale empirical study of approximately 2,100 successor liability decisions. Employing quantitative machine learning and “big data” processing techniques, the Article develops a new theoretical taxonomy that reflects the underlying textual structure manifested across each of the 2,100 decisions’ full texts. The new taxonomy postulates that courts apply successor liability doctrine to effectuate four aims: (1) to carry out a federal statutory mandate, (2) to rectify liability evasion, (3) to allocate risk, and (4) to support bankruptcy values. The taxonomy is used to clarify the normative ambiguity surrounding application of de facto merger and to mitigate between the competing policies of asset alienability on the one hand and protection for involuntary tort creditors or satisfaction of contract law principles on the other.

The Efficiency Criterion of Securities Regulation: Investor Welfare or Cost-Benefit Analysis?

Recent regulatory debates among legislators and legal scholars have centered on whether independent agencies should be subjected to a more rigorous cost-benefit analysis requirement than their current mandates, or alternatively, whether they should be required to conduct cost-benefit analyses that conform to the Office of Management and Budget’s guidance under Circular A-4, as many executive agencies already do. This Article closely examines the way in which one particular agency — the Securities and Exchange Commission (“SEC”) — conducts its economic analysis in rulemaking. The SEC’s economic analysis, conducted pursuant to a statutory mandate to consider the effects on “efficiency, competition, and capital formation,” is essentially an investor welfare analysis: it considers how the rule would benefit investors and then considers the out-of-pocket compliance costs that regulated entities would incur. Circular A-4, by contrast, recommends a total surplus approach: a rule’s benefits and costs are considered from the perspective of all stakeholders in the affected sectors, without making any value judgment as to which parties are more deserving of surpluses. The current debates therefore raise an urgent policy question for the SEC with regard to the proper criterion of efficiency for its rules: whether it should continue to consider the costs and benefits of its rules from the perspective of investors only, or whether it should instead consider them from the perspective of total surplus. This Article raises four points in considering this question. First, because the two approaches provide conflicting standards as to the efficiency determination, arguments to impose additional burdens on the economic analysis for SEC rules are unlikely to be constructive unless parties can first agree upon the relevant efficiency criterion for securities regulation. The efficiency-criterion question must therefore be considered prior to the procedural question. Second, because Circular A-4 considers a broader spectrum of costs and benefits, those concerned exclusively with investors’ economic welfare should have reasons to object to, rather than support, its application to SEC rules. Third, despite such reasons, there is nevertheless a case for preferring Circular A-4’s approach because, if used properly, it offers several important benefits from a broader policy perspective. Finally, because the SEC has broad rulemaking authority and is not in fact constrained by an obligation to justify all of its rules on efficiency grounds, if the SEC seeks to protect investors’ economic interests at the expense of other stakeholders, it should be both more transparent and aggressive in adopting such rules for non-efficiency purposes that would qualify as “compelling public needs.”

The Lost World of Administrative Law

The reality of the modern administrative state diverges considerably from the series of assumptions underlying the Administrative Procedure Act (APA) and classic judicial decisions that followed the APA reviewing agency actions. Those assumptions call for statutory directives to be implemented by one agency led by Senate-confirmed presidential appointees with decision-making authority. The implementation (in the form of a discrete action) is presumed to be through statutorily mandated procedures and criteria, with judicial review to determine whether the reasons given by the agency at the time of its action match the delegated directions. This is the lost world of administrative law, though it is what students largely still learn. Today, there are often statutory and executive directives to be implemented by multiple agencies often missing confirmed leaders, where ultimate decision-making authority may rest outside of those agencies. The process of implementation is also through mandates in both statutes and executive orders, where the final result faces limited, if any, oversight by the courts. The mismatch has consequences for the legitimacy and efficacy of the federal bureaucracy: some positive, many negative. Because we do not think a return to the lost world is possible or perhaps even desirable, we propose some possible reforms in all three branches of the federal government to strengthen the match between current realities and administrative law and to further administrative law’s objectives of transparency, rule of law, and reasoned implementation of statutory mandates. We also hope that the proposed reforms can help foster the public interest goals of modern regulation, such as environmental quality or financial stability. We realize that many scholars and probably at least some judges are aware that formal administrative procedures, official records, and judicial review are only part of the dynamics of administrative governance. But administrative law, as developed by the courts and in governing statutes, has not meaningfully confronted the contemporary realities of the administrative state. It thus risks becoming irrelevant to the quality of governance.

Guarding Our Borders with Gardasil: Immigrant Women and Physical Autonomy

The invisibility of immigrant women's health care and justice needs, which are directly related to the triple oppression they face and intersectional identities they hold, is highlighted by the silence surrounding a requirement that they be immunized against cervical cancer with the controversial vaccination, Gardasil. Such a requirement was the unintended consequence of a statutory mandate colliding with an agency recommendation, and it disproportionately burdened women and girls emigrating from Mexico. A quiet and far-reaching coalition used unconventional means to get the policy reversed and opened new ways for scholars to understand potential responses to agency-level injustices for groups marginalized by dominant discourses of public health and immigration.

Essential Elements of Security and their Applications in Ensuring Stability and Integration of Nigeria

This study attempts to x-ray the essential elements of security and the need for their application in ensuring the stability and integration of the Nigerian federation in the light of the fore-going heightened security challengesin Nigeria. No nation can freely develop or overcome the forces of instabilities and disintegration when it neglects the effectiveharnesment or applicationof basic or essential elements of security. Such critical elements of security include; timely procurement of security intelligence, prompt identification of threats to both internal and national security, with its attendant pro-active security arrangement,threat assessment, statement of aims/objectives of national security objectives and programmes, planning to be in line with the objectives of national security. Others are; security liaison, and net-working with other sister security departments towards achieving the national security objectives, effectively coordinating security and its activities under a centralized command structure, re-appraisal of the overall security objectives, situations and strategies in the light of new developments as well as advising government based on the situation on ground for the overall improvement of security measuresand adequate funding. In the case of Nigeria, security lapses and challenges manifest on daily basis in forms of youth restiveness, terrorism and insurgent attacks, kidnappings and hostage-takings for monetaryransoms, political assassinations, arsons, murders, cult-related activities, mass protests and so forth: theseare traceable to neglect of these essential elements of security.However, the past military leaders and political class in Nigeria, seem less interested toadequately fund security departments to enable them cope with security challenges in the country. They seem to pay lip-services to the critical elements of security until small internal disputes are allowed due to political partisan and ethno- religioussentiments to snow-ball to security crises of national dimension as is the case with the present Boko Haram insurgencypresently threatening Nigeria's stability, unity and existence. This work analyzes descriptively while multi-track security model is the theoretical framework. This work indicates that the Nigerian Government whichhas the sole statutory mandate to manage state security has not effectively harnessed the critical essentials of security to achieve the stability and integration of the country. The work therefore recommends that the Nigerian leaders should holistically address and utilize the essential elements of security in ensuring the stability and integration of the Nigerian Federation by effectively organizing, planning, funding, controlling, directing and integrating technical elements with human, and material resources towards achieving the stability and integration of the Nigerian state.

From Revolutionary to Palace Guard: The Role and Requirements of Intermediaries Under Proposed Regulation Crowdfunding

Intermediaries in securities crowdfunding face significant requirements as a result of the statutory mandates of Title III of the JOBS Act. The SEC, in its proposed rules, provided structure to these requirements. The proposed rules would create strict requirements for intermediaries regarding their relationships with investors and how they undertake crowdfunding transactions under Section 4(a)(6) of the Securities Act. The proposed rules would also create and establish the guidelines for funding portals, a new type of limited purpose securities broker. While some commentators decry the SEC for placing undue burdens and legal liabilities on intermediaries in securities crowdfunding, the SEC had limited discretion in the proposed rules in regards to those issues. It is unclear what type of market will develop as a result of these rules as market participants work through the challenges and opportunities of securities crowdfunding.

Educational Development and Production of Accountants in Nigeria: Challenges and Way Forward

This paper, through the review of relevant literature, examined the factors that had hindered the educational development and production of sufficient numbers of desirable quality of professional and academic accountants in Nigeria from meeting the demands of the growing Nigerian economy. Accordingly, the efforts of the two Nigerian professional accounting regulatory bodies and tertiary educational institutions that share the responsibility for the development and production of accountants in Nigeria were examined. The inhibitive factors were identified to include the late take-off of accounting education and the inherent limitations in Nigeria’s tertiary institutions and the poor handling of the production of professional accountants in Nigeria by the two Nigerian professional accounting regulatory bodies. The paper recommended that the contents of the academic and professional accounting curricula be expanded and the duration of accounting education increased from the present four year to five years, while first degree should be made the minimum academic qualification for future professional accountants and for the two professional accounting bodies to get better focused in actualizing their respective statutory mandates if they are to produce globally relevant accountants.Key words: Academic Accountants; Accountant academic development; accounting education ; Accountant professional development ; Globally relevant Accountants; accounting education

Implementing Macroprudential Finance-Oversight Policy: Legal Considerations

The global financial traumas that began in 2008 have led many nations to consider supplementing their traditional, microprudential finance-regulatory regimes with macroprudential policy instruments and, in some cases, institutions. This working paper, an early draft for what ultimately was to become an IMF Legal Department policy paper, aims systematically to address the legal and institutional considerations that any move toward macroprudential finance-regulatory policy implicates. It first considers what is involved in establishing or adapting a statutory or equivalent mandate for macroprudential finance-regulatory policy. It then turns to the harmonization of substantive macroprudential mandates with pre-existing policy regimes. Finally it considers the variety of ways in which macroprudential finance-regulatory institutions can be established or adapted in harmony with pre-existing institutions.

Evading Public and Congressional Review of Agency Policy Statements

Between 1946-2002, Congress passed no fewer than five statutes intended to ensure that federal agencies’ statements of policy were quickly and permanently available in print and then accessible online for ongoing public and Congressional review. Moreover, in 2007, the White House’s Office of Management and Budget issued a directive reiterating that agencies should publish and immediately post online all significant new policy statements and other guidance. Yet despite these rules and public reaffirmations of the value of “transparency” and sunshine in government, this Article examines the available data from the last seventeen years and reveals a darker picture of federal agencies that are increasingly less likely to publish their new policy statements for public review or submit them to Congress for its review. These failures were exemplified in several recent high-profile cases involving health care reform, death penalty drugs, and sexual orientation discrimination, where agencies in both Democratic and Republican administrations attempted to alter key law enforcement policies while evading statutory mandates for public and congressional review. Such practices raise troubling questions about democratic accountability across the government — should Congress and the voting public be forced to depend on newspaper reporters fortunate enough to stumble upon these policy changes months or years after their implementation? This Article studies and explains the failures of prior efforts to publicize and regularize administrative policymaking, and offers suggestions on what Congress, the public, and the agencies themselves can (or should) do to remedy these issues.

The Internet and Citizen Participation in Rulemaking

Each year, regulatory agencies promulgate thousands of important rules through a process largely insulated from ordinary citizens. Many observers believe the Internet could help revolutionize the rulemaking process, allowing citizens to play a central role in the development of new government regulations. This paper expresses a contrary view. In it, I argue that existing efforts to apply information technology to rulemaking will not noticeably affect citizen participation, as these current efforts do little more than digitize the existing process without addressing the underlying obstacles to greater citizen participation. Although more innovative technologies may eventually enable the ordinary citizen to play a greater role in rulemaking, such future applications will only raise the question of whether greater citizen involvement is necessarily a good thing. A substantial and systematic increase in citizen comments will not be a welcome development if it leads regulators to strive to satisfy those who file comments instead of selecting the policy option that best fulfills the statutory mandate or public interest. Overall, the novelty of applying information technology to the rulemaking process merits no special optimism, but rather such technology deserves careful assessment of both its positive and negative effects.Posted paper, uploaded January 2010, is the published version of the working paper originally posted July 2003, and formerly titled The Internet and Public Participation in Rulemaking.

Statement of Matthew L. M. Fletcher, Michigan State University College of Law and Indigenous Law and Policy Center before the Secretarial Commission on Indian Trust Administration and Reform

I propose three recommendations. Mind you, I am a law professor that has moved away from the day-to-day practice of Indian law, so these are big-picture recommendations: 1. Statutory Recognition of a General Trust Obligation; 2. Statutory Mandate of Consultation and Consent Requirements in Indian Affairs; 3. Renunciation of the Guardian-Ward Relationship.I make these recommendations based on my experience (limited as it may be so far) as Reporter of the Restatement, Third, the Law of American Indians. The American Law Institute is careful to limit its restatement projects to blackletter “restatements” of law. In our first meeting, I learned that to refer to the relationship between Indians and tribes and United States as a “trust responsibility,” “trust obligation,” or “trust duty” is a very contestable reference. Since responsibilities, obligations, and duties are enforceable by a court, to refer to a federal responsibility that is not generally enforceable in court is controversial at best.Moreover, I hope the United States could incorporate many if not all of the operative, substantive provisions of the United Nations Declaration of the Rights of Indigenous Peoples. I focus here on the consultation and consent requirements that form the structure of the Declaration.

Federal Jurisdiction Over Internet and Broadband: A Commentary on Technology and Content Regulation

Ever since the growth of federal administrative agencies during the New Deal, these institutions’ powers and jurisdiction have been defined mainly by their enabling act. With the development of a host of new technologies during the last 50 years, however, agencies increasingly have found themselves trapped between a lack of clear statutory mandates and Congress’ refusal to supply one by way of amendment.This situation has been particularly troublesome in the media-telecommunications area. It began with the development of cable television, which fell into neither of the Federal Communications Commission’s two major regulatory powers: common carriage and broadcasting. Because of an increasing fear that cable would destroy the advertising economy of broadcasting, the FCC convinced the Supreme Court to imply “reasonably ancillary powers” from the agency’s other powers. Though the basis for this judicial acknowledgement of new jurisdiction was never clear, it basically filled the regulatory hiatus from the late 1960s to the early 1980s, when Congress eventually passed new legislation.Though ancillary jurisdiction today largely is a study in legal history, it may inadvertently have provided a basis for FCC power over Internet, broadband, and other forms of cybermedia. Though only one Supreme Court decision and a few lower court cases have invoked it, the almost forgotten notion of ancillary jurisdiction yet may have viability today.

<i>Maccsand (Pty) Ltd v City of Cape Town</i> 2012 (4) SA 181 (CC)

The Constitutional Court in Maccsand (Pty) Ltd v City of Cape Town (CCT 103/11) 2012 ZACC 7 decided that the granting of mining rights or mining permits by the Minister of Mineral Resources in terms of the Mineral and Petroleum Resources Development Act 28 of 2002 does not obviate the obligation on an applicant to obtain authorisations in terms of other legislation that deals with functional domains other than minerals, mining and prospecting. This applies to all other legislation, irrespective of whether the responsible administrator of such other legislation is in the national, provincial or local sphere of government. The effect of the decision is that planning and other authorities which derive their statutory mandate and powers from other legislation retain all their powers as regards planning and rezoning, for instance. In addition, the Minister of Mineral Resources cannot make a decision on behalf of, or for, such functionaries. The judgement also clarified the question of whether or not a national Act can supersede provincial legislation dealing with a distinctly different functional domain. In principle, the decision also indicates that the fact that a range of authorisations are required in terms of separate statutory instruments (each with its own functional domain and administered by its own functionary) does not necessarily amount to conflicts between these instruments. An owner of land may now insist that his land may not be used for mining purposes if it is not zoned for such purposes. It is submitted that, in order to provide certainty to land owners, developers and government functionaries, and to promote investor confidence (especially in the mining sector), an intergovernmental system for the consideration of applications by the functionaries responsible for the separate statutory instruments needs to be developed as a high priority.

La “complejidad” en las humanidades. una propuesta de la actualización desde los seminarios participativos

It is important to point out the way in which the 'General Studies' School, particularly with the introduction of 'Participative Seminars' since 1974, has incorporated a methodological option in accordance with the cognitive models suggested by the University of Costa Rica' statutory mandate. Also, the “Humanities for the XXI century” are revised according to international standards of college education quality. Such pathways convey to the strenghtening of methodological strategies based on the complexity paradigm.

Wind Generation Patterns and the Economics of Wind Subsidies

An analysis supports the conclusion that there is no economic rationale for continued subsidization of wind generation. At the federal level, direct subsidies, such as the federal production tax credit, should not be continued. State-level subsidies, whether feed-in tariffs established by state regulators or statutory RPS mandates, further exacerbate market distortions and raise electricity prices, again to the detriment of consumers.

The Right to Freedom of Expression, Press and Culture in South Africa: A Survey of Recent Developments

This article reflects on the recent case and determination in Goodman Gallery v Film and Publication Board and Print Media South Africa v Minister of Home Affairs and Another which set important precedents in the media industry. These determinations also show the consistency of the South African Courts and tribunals in ensuring that the right to human dignity, the achievement of equality, and the advancement of human rights and freedoms which are among the founding values of the Constitution are afforded adequate protection. These constitutional rights are often in conflict with each other. The article determines whether one constitutional right supersedes the other. It also comments briefly on the role of the media in South Africa and its challenges under democracy. The article further considers the statutory mandate of the Films and Publication Board and provides a critique of the decision in Goodman Gallery.

Children’s Disclosures of Child Sexual Abuse

CME Educational Objectives 1. Understand the spectrum of clinical presentations that raise the concern that a child has experienced sexual victimization, the clinical expression of the “disease” of sexual victimization, and the disclosure process. 2. Differentiate normal developmental behaviors vs. concerning sexual behaviors and the unique role of the medical history as an essential element of securing an accurate diagnosis. 3. Determine the basics of meeting the medical, mental health, and protective needs of child victims, as well as review reporting expectations and liabilities. The appropriate response to possible child sexual abuse can only occur when the pediatrician understands the essential elements of the “disease of sexual victimization.” As with any disease, the evolution of this disease is reflected by a clinical presentation that unfolds over a period of time with associated signs and symptoms. This article describes how children who are suspected of being sexually abused present to pediatricians, and how to properly diagnose them in order to meet the statutory mandate to report.

The First Amendment And The Ministerial Exemption: Federal Statutory Mandates

<span style="font-family: Times New Roman; font-size: small;"> </span><p style="margin: 0in 0.5in 0pt; text-align: justify; mso-pagination: none;" class="MsoNormal"><span style="color: black; font-size: 10pt; mso-themecolor: text1;"><span style="font-family: Times New Roman;">On January 11, 2012 the United States Supreme Court ruled in Hosanna Tabor Evangelical Lutheran School v. Equal Opportunity Commission, et al.</span></span><a name="_ftnref1" style="mso-footnote-id: ftn1;" href="http://journals.cluteonline.com/index.php/JABR/author/saveSubmit/3#_ftn1"><span class="MsoFootnoteReference"><span style="color: black; font-size: 10pt; mso-fareast-font-family: "Times New Roman"; mso-fareast-theme-font: minor-fareast; mso-themecolor: text1;"><span style="mso-special-character: footnote;"><span class="MsoFootnoteReference"><span style="color: black; font-family: "Times New Roman","serif"; font-size: 10pt; mso-fareast-font-family: "Times New Roman"; mso-ansi-language: EN-US; mso-fareast-language: EN-US; mso-bidi-language: AR-SA; mso-fareast-theme-font: minor-fareast; mso-themecolor: text1;">[1]</span></span></span></span></span></a><span style="color: black; font-size: 10pt; mso-themecolor: text1;"><span style="font-family: Times New Roman;"> that the First Amendment free exercise of religion clause requires the recognition of a ministerial exception from the application of the discrimination provisions of the federal Americans with Disabilities Act.<span style="mso-spacerun: yes;"> </span>Lower federal courts had long recognized such an exemption in federal anti-discrimination statutes, yet the U.S. Supreme Court had never formally done so.<span style="mso-spacerun: yes;"> </span>The decision of the Court was unanimous, although separate concurring opinions were filed by Justice Thomas and by Justice Alito, who was also joined by Justice Kagan.<span style="mso-spacerun: yes;"> </span>Thus, in its decision, the Court has mandated immunity for religious organizations from the laws that prohibit discrimination, and retaliation in the workplace.<span style="mso-spacerun: yes;"> </span>The Hosanna Tabor decision raises issues of how far such a ministerial exemption extends and to what extent it immunizes religious organizations from liability for other types of statutorily prohibited and tortious conduct.<span style="mso-spacerun: yes;"> </span>There is concern in some sectors that too broad an exemption would immunize religious organizations under numerous neutral, generally applicable laws, such as those governing sexual abuse, unemployment compensation, employer social Security deductions, and sales taxes, all of which have previously been applied to religious organizations.</span></span></p><span style="font-family: Times New Roman; font-size: small;"> </span><div style="mso-element: footnote-list;"><br /><span style="font-family: Times New Roman; font-size: small;"> <hr size="1" /></span><div style="mso-element: footnote;" id="ftn1"><span style="font-family: Times New Roman; font-size: small;"> </span><p style="margin: 0in 0in 0pt; text-align: justify;" class="MsoFootnoteText"><a name="_ftn1" style="mso-footnote-id: ftn1;" href="http://journals.cluteonline.com/index.php/JABR/author/saveSubmit/3#_ftnref1"><span class="MsoFootnoteReference"><span style="mso-special-character: footnote;"><span class="MsoFootnoteReference"><span style="font-family: "Times New Roman","serif"; font-size: 10pt; mso-fareast-font-family: "Times New Roman"; mso-ansi-language: EN-US; mso-fareast-language: EN-US; mso-bidi-language: AR-SA; mso-bidi-font-size: 12.0pt; mso-fareast-theme-font: minor-fareast;">[1]</span></span></span></span></a><span style="font-family: Times New Roman;"><span style="font-size: x-small;"> </span><span style="font-size: 9pt; mso-bidi-font-size: 12.0pt;">____ U.S. ____.</span><span style="font-size: 11pt; mso-bidi-font-size: 12.0pt;"></span></span></p><span style="font-family: Times New Roman; font-size: small;"> </span></div><span style="font-family: Times New Roman; font-size: small;"> </span></div><span style="font-family: Times New Roman; font-size: small;"> </span>